In its latest defense of its stringent new anti-abortion law, Texas says the travel of desperate women seeking abortions in other states is “stimulating” interstate commerce.
The argument, which infuriated women’s rights groups, came up in a court filing by Texas’ top legal officials as they fend off a lawsuit from the US government. The Department of Justice is currently suing to stop the enforcement of Senate Bill 8, Texas’ near-total ban on abortions, and has cited its impact on interstate commerce as one reason to block it.
In a legal brief filed on Wednesday, Texas said that argument doesn’t apply.
“In this case, the federal government does not bring a commerce claim, nor does it cite any actual evidence that the Texas Heartbeat Act burdens interstate commerce,” the state said. “What evidence that does exist in the record suggests that, if anything, the Act is stimulating rather than obstructing interstate travel.”
The document then refers the reader to sections “noting increase in Texas women traveling to Oklahoma” and “same for Kansas”.
The American Civil Liberties Union expressed outrage over the brief.
“As thousands of pregnant Texans seeking essential, time-sensitive medical care are forced to flee the state in desperation, Texas is now claiming its blatantly unconstitutional abortion ban has ‘stimulated’ interstate travel,” Julia Kaye, an attorney at the ACLU, told Bloomberg. “It is appalling that Texas is trying to capitalize on the catastrophe anti-abortion politicians created.”
Texas passed SB8 in May, banning all abortions after a fetus’ heartbeat can be detected. Typically, that happens about six weeks into a pregnancy – a point at which many women might not yet know they’re pregnant.
In late August, abortion providers appealed to the US Supreme Court to block the law, but the high court declined to intervene.
Then, in September, the Biden administration stepped in. Arguing that SB8 violated Roe v Wade, the Supreme Court case that legalized abortion, the Department of Justice asked a federal court in Texas to stop the law’s enforcement.
“The Act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said in a statement. “The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”
US District Judge Robert Pitman is scheduled to consider both sides’ arguments at a hearing on Friday.
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